Nursing Mothers Get Their Civil Rights

LA Restaurant Fined $46,645 for Firing Breastfeeding Mom
Jesus Acosta, the owner LA Taqueria Acosta Tacos, was ordered on Tuesday to pay $46,645 to a former employee for unfair termination after learning that the employee had breastfed her infant in her car during her break time at the restaurant. This abhorrent violation of the employee's rights, along with the recent ruling, set a precedent that bodes well for breastfeeding moms in California. The California Department of Fair Employment and Housing (DFEH), the agency that ruled on the case, found Acosta liable for sex discrimination, retaliation, and failure to prevent discrimination. Acosta was ordered to pay his former employee $21,645.00 in lost wages plus $20,000.00 as compensation for her emotional suffering. An additional $5,000 fine is to be paid to the state's General Fund as an administrative fine. Phyllis Cheng, Director of the DFEH, said that "[The employee] suffered an egregious violation of her civil rights that is not tolerated in California...It is unconscionable that a working mother should be penalized for needing to feed her newborn baby, and the law ensures that her rights are protected." This ruling sends the message to all employers and employees in California that the state's laws regarding workplace lactation must be followed. However this is all changed by the new health care bill which comes in to play immediately.

Breast Feeding Mandate part of Health Care Bill

Tracy Overstreet, The Grand Island Independent (this is a newspaper in Central Nebraska)  

The federal Health Care Reform Reconciliation Bill mandates that employers with more than 50 workers provide a private place, other than a rest room, and time for a mother to express breast milk for a nursing child up to 1 year old.
"It's time to celebrate," said Jane Miller, a nurse with the Women, Infants and Children program at the Central District Health Department in Grand Island. "It's past time for Nebraska to address this issue."

Only Nebraska and Idaho lacked breast-feeding protections in state law, Miller said. Nebraska's only provision was to excuse nursing mothers from jury duty if they presented a doctor's note, she said. But now all states will have protections in the workplace for nursing mothers, Miller said. That means employees working in the JBS Swift & Co. meatpacking plant in Grand Island will have breast-feeding accommodations like those their colleagues at Swift's Greeley, Colo., plant already had courtesy of a Colorado breast-feeding law.

Miller said numerous mothers in her WIC program have reported being ridiculed by co-workers at the Swift plant for trying to pump during breaks or having difficulty getting time or accommodations to do so. They have had to use the plant's rest rooms or locker rooms, she said. "I'm going to look into this personally," JBS spokesman Chandler Keys said. "We're all about nursing moms and their babies." Keys said he's been told that mothers requesting time to nurse have been provided exam rooms in the plant's health station. Pumped milk can be kept in the nurse's station refrigerator, he said. But not all mothers may feel they can ask for accommodations, he acknowledged.

Miller said she was working with one mother who asked her employer, Skagway, to accommodate her. The employee was surprised when she was not only accommodated but given the bosses' office to do so. The result of being accommodated is employees who are more dedicated to their employers, Miller said.

But there are other reasons to support breast-feeding. Those reasons are as clear as the "Affordable Health Care Begins With Breast-Feeding" pin that Miller wears on her lapel. "It's for a healthier, happier America," she said.
Research shows that breast-fed babies are 40 percent less likely to have diabetes, 60 percent less likely to have recurring ear infections and 25 percent less likely to become overweight.
 It took Sharky&Sharky awhile to find this mandate. You see it was not in the reconciliation bill of HR. The nursing mandate is in the original Senate bill that passed in only the Senate on Christmas Eve. Here is the "precise" wording:
Page 1217
HR 3590 EAS/PP

1. SEC. 4207. REASONABLE BREAK TIME FOR NURSING
2. MOTHERS.
3. Section 7 of the Fair Labor Standards Act of 1938
4. (29 U.S.C. 207) is amended by adding at the end the fol-
5. lowing:
6. ''(r)(1) An employer shall provide—
7. ''(A) a reasonable break time for an employee to
8. express breast milk for her nursing child for 1 year
9. after the child's birth each time such employee has
10. need to express the milk; and
11. ''(B) a place, other than a bathroom, that is
12. shielded from view and free from intrusion from co-
13. workers and the public, which may be used by an em-
14. ployee to express breast milk.
15. ''(2) An employer shall not be required to compensate
16. an employee receiving reasonable break time under para-
17. graph (1) for any work time spent for such purpose.
18. ''(3) An employer that employs less than 50 employees
19. shall not be subject to the requirements of this subsection,
20. if such requirements would impose an undue hardship by
21. causing the employer significant difficulty or expense when
22. considered in relation to the size, financial resources, na-
23. ture, or structure of the employer's business.
24. ''(4) Nothing in this subsection shall preempt a State
25. law that provides greater protections to employees than the
26. protections provided for under this subsection.''. /

How did this mandate become part of the health bill on Christmas Eve; where did it come from?
First Rep. Carolyn Maloney presented a breastfeeding promotion bill in the house in 2007. The bill died. Moving on if we look to June 11, 2009 we see that Oregon Senator Merkley with Representative Maloney proposed the Breastfeeding Promotion Act (BPA) in their respective chambers. This was a derivative of an Oregon Law. Senator Merkley presents another horrible situation. This act did not seem to get anywhere. However when the Christmas Eve Senate health bill passed, the nursing mandate was present.
With a few changes the best way to analyze the Mandate for Nursing Mothers is to use Kingdon's problem, policy and politics streams approach. This helps somewhat but may not get us all the way to completion. Kingdon asserts that the policy process is not rational. Policy is not generated by determining the net bet benefits from a select group of well thought out alternatives. Let us follow an imagined path of creating the Nursing Mother's Mandate (NMM).
First the Stream theory says that there has to be a problem. A major organization that lobbies for Nursing Mothers is United States Breast Feeding Committee. Obviously Rep Maloney and Senator Merkley responded to the problem; they introduced bills in their respective chambers. Although these bills did not pass, they did not disappear. They sit around as policy proposals (like garbage that never gets hauled away, ref Cohen, March, Olsen). A policy entrepreneur awaits an opportunity to wedge his proposal or garbage on to policy. In the NMM situation the policy entrepreneur may have been a Hill staffer in Senator Merkley's office. The policy does not have to address his problem or he might have to change his proposal to make it fit the category of the problem being addressed by the policy. For example the original BPA looked like this:

1. Protecting Breastfeeding Under Civil Rights Law.  This will ensure that women cannot be fired or discriminated against in the workplace for expressing milk or breastfeeding during lunch or breaks.
2. Providing Tax Incentives for Employers.  The bill encourages employers to set up a safe, private, and sanitary environment for women to express (or pump) breast milk by providing a tax credit for employers who set up a lactation location, purchase or rent lactation-related equipment, hire a lactation consultant or otherwise promote a lactation-friendly work environment.  Many companies would be able to receive a tax credit of up to fifty percent of their related expenses.
3. Setting Safety Standards for Breast Pumps.  The bill requires the Food and Drug Administration (FDA) to develop minimum quality standards for breast pumps to ensure that products on the market are safe and effective.
4. Allowing Breastfeeding Equipment to Be Tax Deductible.
5. Protecting the Privacy of Breastfeeding Mothers.  The bill ensures moms break time to express milk, and reasonable efforts to provide a private place for them to pump.

If you throw out 2, 3, and 4 because they would cause friction at the last minute, Sharky&Sharky think you have the Nursing Mother's Mandate, couple it to the Christmas Eve Health Bill, and it becomes law. There was no analysis of cost, employer impact, nor negative externalities further there was no decision, just a coupling.
Sharky&Sharky is not against working, nursing mothers. But the sharkbite is how many other mandates are in the 1994 page Health Bill that had no analysis of costs, employer impact, nor negative externalities and what will the unintended consequences be? How many policy entrepreneurs added their favored proposals to the Health Bill? Finally Citizen now that you know that this is the way government develops how will you manage the ensuing chaos?

©Sharky&Sharky